DECISION 


OF 


CHIEF  JUSTICE  TANEY, 

IN  THE 


MERRYMAN  CASE, 


UPON  THE 

WRIT  OF  HABEAS  CORPUS.  ' 


PUBLISHED  BY  AUTHORITY. 


y 7 l ) & 

PHILADELPHIA: 

JOHN  CAMPBELL,  BOOKSELLER, 

419  CHESTNUT  STREET. 

1862. 


Digitized  by  the  Internet  Archive 
in  2015 


https://archive.org/details/decisionofchiefjOOunit 


DECISION. 


Ex  parte 
John  Merryman. 


1 Before  the  Chief  Justice  of  the 
v Supreme  Court  of  the  United  States 
j at  Chambers. 


The  application  in  this  case  for  a Writ  of  Habeas  Corpus  is 
made  to  me  under  the  14tli  Section  of  the  Judiciary  Act  of  1789, 
which  renders  effectual  for  the  citizen  the  constitutional  privilege 
of  the  Habeas  Corpus.  That  Act  gives  to  the  Courts  of  the 
United  States,  as  well  as  to  each  Justice  of  the  Supreme  Court, 
and  to  every  District  Judge,  power  to  grant  writs  of  Habeas  Cor- 
pus for  the  purpose  of  an  inquiry  into  the  cause  of  commitment. 
The  petition  was  presented  to  me  at  Washington,  under  the  impres- 
sion that  I would  order  the  prisoner  to  be  brought  before  me  there, 
but  as  he  was  confined  in  Fort  McHenry,  in  the  City  of  Baltimore, 
which  is  in  my  circuit,  I resolved  to  hear  it  in  the  latter  City,  as 
obedience  to  the  Writ,  under  such  circumstances,  would  not  with- 
draw Gen.  Cadwalader,  who  had  him  in  charge,  from  the  limits  of 
his  military  command. 

The  petition  presents  the  following  case : The  petitioner  resides 

in  Maryland,  in  Baltimore  County.  While  peaceably  in  his  own 
house,  with  his  family,  he  was,  at  2 o’clock  on  the. morning  of  the 
25th  of  May,  1861,  arrested  by  an  armed  force,  professing  to  act 
under  military  orders.  He  was  then  compelled  to  rise  from  his 
bed,  taken  into  custody  and  conveyed  to  Fort  McHenry,  where  he 
is  imprisoned  by  the  commanding  officer,  without  warrant  from  any 
lawful  authority. 

The  commander  of  the  Fort,  Gen.  George  Cadwalader,  by  whom 
he  is  detained  in  confinement,  in  his  return  to  the  Writ,  does  not 
deny  any  of  the  facts  alleged  in  the  petition.  He  states  that  the 
prisoner  was  arrested  by  order  of  Gen.  Keim,  of  Pennsylvania, 
and  conducted  as  a prisoner  to  Fort  McHenry  by  his  order,  and 

(3) 


4 


placed  in  his  (Gen.  Cadwalader’s)  custody,  to  be  there  detained  by 
him  as  a prisoner. 

A copy  of  the  warrant,  or  order,  under  which  the  prisoner  was 
arrested,  was  demanded  by  his  counsel  and  refused.  And  it  is  not 
alleged  in  the  return  that  any  specific  act,  constituting  an  offence 
against  the  laws  of  the  United  States,  has  been  charged  against 
him,  upon  oath;  but  he  appears  to  have  been  arrested  upon  general 
charges  of  treason  and  rebellion,  without  proof,  and  without  giving 
the  names  of  the  witnesses,  or  specifying  the  acts  which,  in  the 
judgment  of  the  military  officer,  constituted  these  crimes.  And 
having  the  prisoner  thus  in  custody,  upon  these  vague  and  unsup- 
ported accusations,  he  refuses  to  obey  the  Writ  of  Habeas  Corpus 
upon  the  ground  that  he  is  duly  authorized  by  the  President  to 
suspend  it. 

The  case,  then,  is  simply  this:  A military  officer,  residing  in 

Pennsylvania,  issues  an  order  to  arrest  a citizen  of  Maryland, 
upon  vague  and  indefinite  charges,  without  any  proof,  so  far  as 
appears.  Under  this  order  his  house  is  entered  in  the  night,  he  is 
seized  as  a prisoner,  conveyed  to  Fort  McHenry,  and  there  kept 
in  close  confinement.  And  when  a Habeas  Corpus  is  served  on 
the  commanding  officer,  requiring  him  to  produce  the  prisoner 
before  a Justice  of  the  Supreme  Court,  in  order  that  he  may 
examine  into  the  legality  of  the  impi’isonment,  the  answrnr  of  the 
officer  is,  that  he  is  authorized  by  the  President  to  suspend  the 
Writ  of  Habeas  Corpus  at  his  discretion,  and,  in  the  exercise  of 
that  discretion,  suspends  it  in  this  case,  and  on  that  ground  refuses 
obedience  to  the  Writ. 

As  the  case  comes  before  me,  therefore,  I understand  that  the 
President  not  only  claims  the  right  to  suspend  the  Writ  of  Habeas 
Corpus  himself,  at  his  discretion,  but  to  delegate  that  discretionary 
power  to  a military  officer,  and  to  leave  it  to  him  to  determine 
whether  he  will  or  will  not  obey  judicial  process  that  may  be 
served  upon  him. 

No  official  notice  has  been  given  to  the  Courts  of  Justice,  or  to 
the  public,  by  proclamation,  or  otherwise,  that  the  President 
claimed  this  power,  and  had  exercised  it  in  the  manner  stated  in 
the  return.  And  I certainly  listened  to  it  with  some  surprise,  for 
I had  supposed  it  to  be  one  of  those  points  of  constitutional  law 


5 


upon  which  there  was  no  difference  of  opinion,  and  that  it  was 
admitted  on  all  hands  that  the  privilege  of  the  Writ  could  not  he 
suspended,  except  by  act  of  Congress. 

When  the  conspiracy  of  which  Aaron  Burr  was  the  head  became 
so  formidable,  and  was  so  extensively  ramified  as  to  justify,  in 
Mr.  Jefferson's  opinion,  the  suspension  of  the  Writ,  he  claimed  on 
his  part  no  power  to  suspend  it,  hut  communicated  his  opinion  to 
Congress,  with  all  the  proofs  in  his  possession,  in  order  that  Con- 
gress might  exercise  its  discretion  upon  the  subject,  and  determine 
whether  the  public  safety  required  it.  And  in  the  debate  which 
took  place  upon  the  subject,  no  one  suggested  that  Mr.  Jefferson 
might  exercise  the  power  himself,  if,  in  his  opinion,  the  public 
safety  required  it. 

Having,  therefore,  regarded  the  question  as  too  plain  and  too 
well  settled  to  be  open  to  dispute,  if  the  commanding  officer  had 
stated  that  upon  his  own  responsibility,  and  in  the  exercise  of  his 
own  discretion  he  refused  obedience  to  the  Writ,  I should  have 
contented  myself  with  referring  to  the-  clause  in  the  Constitution, 
and  to  the  construction  it  received  from  every  jurist  and  statesman 
of  that  day,  when  the  case  of  Burr  was  before  them.  But  being 
thus  officially  notified  that  the  privilege  of  the  Writ  has  been  sus- 
pended under  the  orders  and  by  the  authority  of  the  President, 
and  believing,  as  I do,  that  the  President  has  exercised  a power 
which  he  does  not  possess  under  the  Constitution,  a proper  respect 
for  the  high  office  he  fills  requires  me  to  state  plainly  and  fully  the 
grounds  of  my  opinion,  in  order  to  show  that  I have  not  ventured 
to  question  the  legality  of  this  act  without  a careful  and  delibe- 
rate examination  of  the  whole  subject. 

The  clause  in  the  Constitution  which  authorizes  the  suspension 
of  the  privilege  of  the  Writ  of  Habeas  Corpus  is  in  the  ninth  sec- 
tion of  the  first  article. 

This  article  is  devoted  to  the  legislative  department  of  the 
United  States,  and  has  not  the  slightest  reference  to  the  Execu- 
tive department.  It  begins  by  providing  “that  all  legislative 
powers  therein  granted  shall  be  vested  in  a Congress  of  the  United 
States,  which  shall  consist  of  a Senate  and  House  of  Representa- 
tives.” And  after  prescribing  the  manner  in  which  these  two 
branches  of  the  legislative  department  shall  be  chosen,  it  proceeds 


6 


to  enumerate  specifically  tlie  legislative  powers  which  it  thereby 
grants,  and  legislative  powers  which  it  expressly  prohibits ; and, 
at  the  conclusion  of  this  specification,  a clause  is  inserted  giving 
Congress  “ the  power  to  make  all  laws  which  may  he  necessary 
and  proper  for  carrying  into  execution  the  foregoing  powers,  and 
all  other  powers  vested  by  this  Constitution  in  the  Government 
of  the  United  States  or  in  any  department  or  office  thereof.” 

The  power  of  legislation  granted  by  this  latter  clause  is  by  its 
words  carefully  confined  to  the  specific  objects  before  enumerated. 
But  as  this  limitation  was  unavoidably  somewhat  indefinite,  it  was 
deemed  necessary  to  guard  more  effectually  certain  great  cardinal 
principles  essential  to  the  liberty  of  the  citizen,  and  to  the  rights 
and  equality  of  the  States,  by  denying  to  Congress,  in  express 
terms,  any  power  of  legislating  over  them.  It  wTas  apprehended, 
it  seems,  that  such  legislation  might  be  attempted  under  the  pre- 
text that  it  was  necessary  and  proper  to  carry  into  execution  the 
powers  granted ; and  it  was  determined  that  there  should  be  no 
room  to  doubt,  where  rights  of  such  vital  importance  were  con- 
cerned, and,  accordingly,  this  clause  is  immediately  followed  by 
an  enumeration  of  certain  subjects  to  which  the  powers  of  legisla- 
tion shall  not  extend  ; and  the  great  importance  which  the  framers 
of  the  Constitution  attached  to  the  privilege  of  the  Writ  of  Habeas 
Corpus  to  protect  the  liberty  of  the  citizen  is  proved  by  the  fact 
that  its  suspension,  except  in  cases  of  invasion  and  rebellion,  is 
first  in  the  list  of  prohibited  powers — and  even  in  these  cases  the 
power  is  denied,  and  its  exercise  prohibited,  unless  the  public 
safety  shall  require  it. 

It  is  true  that  in  the  cases  mentioned,  Congress  is  of  necessity 
the  judge  of  whether  the  public  safety  does  or  does  not  require 
it ; and  their  judgment  is  conclusive.  But  the  introduction  of 
these  words  is  a standing  admonition  to  the  legislative  body  of  the 
danger  of  suspending  it,  and  of  the  extreme  caution  they  should 
exercise  before  they  give  the  Government  of  the  United  States 
such  power  over  the  liberty  of  a citizen. 

It  is  the  second  article  of  the  Constitution  that  provides  for  the 
organization  of  the  Executive  Department,  and  enumerates  the 
powers  conferred  on  it  and  prescribes  its  duties.  And  if  the  high 
power  over  the  liberty  of  the  citizens  now  claimed  was  intended  to 


7 


be  conferred  on  the  President,  it  would  undoubtedly  be  found  in 
plain  words  in  this  article.  But  there  is  not  a word  in  it  that  can 
furnish  the  slightest  ground  to  justify  the  exercise  of  the  power. 

The  article  begins  by  declaring  that  the  Executive  power  shall 
be  vested  in  a President  of  the  United  States  of  America,  to  hold 
his  office  during  the  term  of  four  years — and  then  proceeds  to  pre- 
scribe the  mode  of  election,  and  to  specify  in  precise-  and  plain 
words  the  powers  delegated  to  him  and  the  duties  imposed  upon 
him.  And  the  short  term  for  which  he  is  elected,  and  the  narrow 
limits  to  which  his  power  is  confined,  show  the  jealousy  and  appre- 
hensions of  future  danger  which  the  framers  of  the  Constitution 
felt  in  relation  to  that  department  of  the  Government — and  how 
carefully  they  withheld  from  it  many  of  the  powers  belonging  to 
the  Executive  branch  of  the  English  Government,  which  were  con- 
sidered as  dangerous  to  the  liberty  of  the  subject — and  conferred 
(and  that  in  clear  and  specific  terms,)  those  powers  only  which 
were  deemed  essential  to  secure  the  successful  operation  of  the 
Government. 

He  is  elected,  as  I have  already  said,  for  the  brief  term  o 
four  years,  and  is  made  personally  responsible,  by  impeachment, 
for  malfeasance  in  office.  He  is,  from  necessity  and  the  nature 
of  his  duties,  the  Commander-in-Chief  of  the  army  and  navy,  and  of 
the  militia  when  called  into  actual  service.  But  no  appropriation 
for  the  support  of  the  army  can  be  made  by  Congress  for  a longer 
term  than  two  years,  so  that  it  is  in  the  power  of  the  succeeding 
House  of  Representatives  to  withhold  the  appropriation  for  its 
support,  and  thus  disband  it,  if,  in  their  judgment,  the  President 
used,  or  designed  to  use  it  for  improper  purposes.  And  although 
the  militia,  when  in  actual  service,  are  under  his  command,  yet  the 
appointment  of  the  officers  is  reserved  to  the  States,  as  a security 
against  the  use  of  the  military  power  for  purposes  dangerous  to  the 
liberties  of  the  people,  or  the  rights  of  the  States. 

So,  too,  his  powers  in  relation  to  the  civil  duties  and  authority 
necessarily  conferred  on  him  are  carefully  restricted,  as  well  as 
those  belonging  to  his  military  character.  He  cannot  appoint  the 
ordinary  officers  of  government,  nor  make  a treaty  with  a foreign 
nation  or  Indian  tribe,  without  the  advice  and  consent  of  the  Senate, 
and  cannot  appoint  even  inferior  officers,  unless  he  is  authorized 


8 


by  an  act  of  Congress  to  do  so.  He  is  not  empowered  to  arrest 
any  one  charged  with  an  offence  against  the  United  States,  and 
whom  he  may,  from  the  evidence  before  him,  believe  to  be  guilty ; 
nor  can  he  authorize  any  officer,  civil  or  military,  to  exercise  this 
power,  for  the  5th  article  of  the  amendments  to  the  Constitution 
expressly  provides  that  no  person  “ shall  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law  ” — that  is,  judicial  process. 

And  even  if  the  privilege  of  the  Writ  of  Habeas  Corpus  was  sus- 
pended by  act  of  Congress,  and  a party  not  subject  to  the  rules  and 
articles  of  war  was  afterwards  arrested  and  imprisoned  by  regu- 
lar judicial  process,  he  could  not  be  detained  in  prison  or  brought 
to  trial  before  a military  tribunal,  for  the  article  in  the  Amend- 
ments to  the  Constitution  immediately  following  the  one  above  re- 
ferred to — that  is,  the  6th  article — provides  that  “ In  all  criminal 
prosecutions  the  accused  shall  enjoy  the  right  to  a speedy  and 
public  trial  by  an  impartial  jury  of  the  State  and  district  wherein 
the  crime  shall  have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of  the  nature 
and  cause  of  the  accusation  ; to  be  confronted  with  the  witnesses 
against  him ; to  have  compulsory  process  for  obtaining  witnesses 
in  his  favor,  and  to  have  the  assistance  of  counsel  for  his  defence.” 

And  the  only  power,  therefore,  which  the  President  possesses, 
where  the  u life,  liberty  or  property  ” of  a private  citizen  is  con- 
cerned, is  the  power  and  duty  prescribed  in  the  third  section  of 
the  second  article,  which  requires  “ that  he  shall  take  care  that  the 
laws  be  faithfully  executed.”  He  is  not  authorized  to  execute 
them  himself,  or  through  agents  or  officers,  civil  or  military, 
appointed  by  himself,  but  he  is  to  take  care  that  they  be  faithfully 
carried  into  execution,  as  they  are  expounded  and  adjudged  by 
the  co-ordinate  branch  of  the  Government,  to  which  that  duty  is 
assigned  by  the  Constitution.  It  is  thus  made  his  duty  to  come  in 
aid  of  the  judicial  authority,  if  it  shall  be  resisted  by  a force  too 
strong  to  be  overcome  without  the  assistance  of  the  Executive  arm. 
But  in  exercising  this  power  he  acts  in  subordination  to  judicial 
authority,  assisting  it  to  execute  its  process  and  enforce  its  judg- 
ments. 

With  such  provisions  in  the  Constitution,  expressed  in  language 
too  clear  to  be  misunderstood  by  any  one,  I can  see  no  ground 


9 


whatever  for  supposing  that  the  President,  in  any  emergency, 
or  in  any  state  of  things,  can  authorize  the  suspension  of  the 
privilege  of  the  Writ  of  Habeas  Corpus,  or  arrest  a citizen  ex- 
cept in  aid  of  the  judicial  power.  He  certainly  does  not  faith- 
fully execute  the  laws  if  he  takes  upon  himself  legislative  power 
by  suspending  the  Writ  of  Habeas  Corpus — and  the  judicial 
power  also,  by  arresting  and  imprisoning  a person  without  due 
process  of  law.  Nor  can  any  argument  be  drawn  from  the  nature 
of  sovereignty,  or  the  necessities  of  government,  for  self-defence 
in  times  of  tumult  and  danger.  The  Government  of  the  United 
States  is  one  of  delegated  and  limited  powers.  It  derives  its 
existence  and  authority  altogether  from  the  Constitution,  and 
neither  of  its  branches,  Executive,  Legislative,  or  Judicial,  can 
exercise  any  of  the  powers  of  Government  beyond  those  specified  and 
granted.  For  the  10th  article  of  the  Amendment  to  the  Constitu- 
tion in  express  terms  provides  that  “ the  powers  not  delegated  to 
the  United  States  by  the  Constitution,  nor  prohibited  by  it 
to  the  States,  are  reserved  to  the  States  respectively,  or  to  the 
people.” 

Indeed  the  security  against  imprisonment  by  executive  authority, 
provided  for  in  the  fifth  article  of  the  Amendments  of  the  Consti- 
tution, which  I have  before  quoted,  is  nothing  more  than  a copy 
of  a like  provision  in  the  English  Constitution,  which  had  been 
firmly  established  before  the  Declaration  of  Independence. 

Blackstone,  in  his  Commentaries  (1st  vol.,  137),  states  it  in  the 
following  words  : 

“ To  make  imprisonment  lawful,  it  must  he  either  by  process 
from  the  Courts  of  Judicature  or  by  warrant  from  some  legal  offi- 
cer having  authority  to  commit  to  prison.”  And  the  people  of  the 
United  Colonies,  who  had  themselves  lived  under  its  protection 
while  they  were  British  subjects,  were  well  aware  of  the  necessity 
of  this  safeguard  for  their  personal  liberty.  And  no  one  can  be- 
lieve that  in  framing  a government  intended  to  guard  still  more 
efficiently  the  rights  and  the  liberties  of  the  citizens  against  execu- 
tive encroachment  and  oppression,  they  would  have  conferred  on 
the  President  a power  which  the  history  of  England  had  proved  to 
he  dangerous  and  oppressive  in  the  hands  of  the  Crown,  and 
which  the  people  of  England  had  compelled  it  to  surrender  after  a 


10 


long  and  obstinate  struggle  on  tbe  part  of  the  English  Executive 
to  usurp  and  retain  it. 

The  right  of  the  subject  to  the  benefit  of  the  Writ  of  Habeas 
Corpus,  it  must  be  recollected,  was  one  of  the  great  points  in  con- 
troversy during  the  long  struggle  in  England  between  arbitrary 
government  and  free  institutions,  and  must  therefore  have  strongly 
attracted  the  attention  of  statesmen  engaged  in  framing  a new, 
and,  as  they  supposed,  a freer  government  than  the  one  which  they 
had  thrown  off  by  the  revolution.  For  from  the  earliest  history  of 
the  common  law,  if  a person  was  imprisoned,  no  matter  by  what 
authority,  he  had  a right  to  the  Writ  of JIabeas  Corpus  to  bring 
his  case  before  the  King’s  Bench ; and  if  no  specific  offence  was 
charged  against  him  in  the  warrant  of  commitment,  he  was  entitled 
to  be  forthwith  discharged  ; and  if  any  offence  was  charged  which 
was  bailable  in  its  character,  the  Court  was  bound  to  set  him  at 
liberty  on  bail.  And  the  most  exciting  contests  between  the  Crown 
and  the  people  of  England  from  the  time  of  Magna  Charta  were 
in  relation  to  the  privilege  of  this  Writ,  and  they  continued  until 
the  passage  of  the  statute  of  31st  Charles  II.,  commonly  known  as 
the  great  Habeas  Corpus  Act. 

This  statute  put  an  end  to  the  struggle,  and  finally  and  firmly 
secured  the  liberty  of  the  subject  from  the  usurpation  and  oppres- 
sion of  the  executive  branch  of  the  Government.  It  nevertheless 
■conferred  no  new  right  upon  the  subject,  but  only  secured  a right 
already  existing.  For  although  the  right  could  not  be  justly  de- 
nied, there  was  often  no  effectual  remedy  against  this  violation,. 
Until  the  statute  of  the  13tli  of  William  III.  the  Judges  held  their 
offices  at  the  pleasure  of  the  King,  and  the  influences  which  he 
■exercised  over  timid,  time-serving,  and  partisan  judges  often 
induced  them,  upon  some  pretext  or  another,  to  refuse  to  discharge 
the  party,  although  he  was  entitled  to  it  by  law,  or  delayed  their 
decisions  from  time  to  time,  so  as  to  prolong  the  imprisonment  of 
persons  who  were  obnoxious  to  the  King  for  their  political  opinions, 
or  had  incurred  his  resentment  in  any  other  way. 

The  great  and  inestimable  value  of  the  Habeas  Corpus  Act  of 
the  31st  Charles  II.  is  that  it  contains  provisions  which  compel 
courts  and  judges,  and  all  parties  concerned,  to  perform  their  duties 
promptly,  in  the  manner  specified  in  the  statute. 


11 


A passage  in  Blackstone’s  Commentaries,  showing  the  ancient 
state  of  the  law  upon  this  subject,  and  the  abuses  which  were  prac- 
ticed through  the  power  and  influence  of  the  Crown,  and  a short 
extract  from  Hallam’s  Constitutional  History,  stating  the  circum- 
stances which  gave  rise  to  the  passage  of  this  statute,  explains 
briefly,  but  fully,  all  that  is  material  to  this  subject. 

Blackstone,  in  his  Commentaries  on  the  Laws  of  England,  (3d 
vol.,  133,  134,)  says: 

“ To  assert  an  absolute  exemption  from  imprisonment  in  all 
cases,  is  inconsistent  with  every  idea  of  law  and  political  society, 
and  in  the  end  would  destroy  all  civil  liberty  by  rendering  its  pro- 
tection impossible. 

“ But  the  glory  of  the  English  law  consists  in  clearly  defining 
the  times,  the  causes  and  the  extent,  when,  wherefore,  and  to  what 
degree  the  imprisonment  of  the  subject  may  be  lawful.  This  it  is 
which  induces  the  absolute  necessity  of  expressing,  upon  every  com- 
mitment, the  reason  for  which  it  is  made,  that  the  court  upon  a 
Habeas  Corpus  may  examine  into  its  validity,  and,  according  to 
the  circumstances  of  the  case,  may  discharge,  admit  to  bail,  or  re- 
mand the  prisoner. 

“And  yet,  early  in  the  reign  of  Charles  I.,  the  Court  of  King’s 
Bench,  relying  on  some  arbitrary  precedents,  (and  those,  perhaps, 
misunderstood,)  determined  that  they  would  not,  upon  a Habeas  Cor- 
pus, either  bail  or  deliver  a prisoner,  though  committed  without  any 
cause  assigned,  in  case  he  was  committed  by  the  special  command 
of  the  King,  or  by  the  Lords  of  the  Privy  Council.  This  drew  on 
a Parliamentary  inquiry,  and  produced  the  Petition  of  Right — 3 
Charles  I. — which  recites  this  illegal  judgment,  and  enacts  that  no 
freeman  hereafter  shall  be  imprisoned  or  detained.  But  when,  in 
the  following  year,  Mr.  Seldon  and  others  were  committed  by  the 
Lords  of  the  Council  in  pursuance  of  his  Majesty’s  special  com- 
mand, under  a general  charge  of  ‘ notable  contempts,  and  stirring 
up  sedition  against  the  King  and  the  Government,’  the  judges  de- 
layed for  two  terms  (including,  also,  the  long  vacation,)  to  deliver 
an  opinion  how  far  such  a charge  was  bailable.  And  when,  at 
length,  they  agreed  that  it  was,  they,  however,  annexed  a condi- 
tion of  finding  sureties  for  their  good  behavior,  which  still  pro- 
tracted their  imprisonment,  the  Chief  Justice,  Sir  Nicholas  Hyde, 


12 


at  the  same  time  declaring  ‘ if  they  were  again  remanded  for  that 
cause,  perhaps  the  Court  would  not  afterward  grant  a Habeas  Cor- 
pus, being  already  made  acquainted  with  the  cause  of  the  imprison- 
ment.’ But  this  was  heard  with  indignation  and  astonishment  by 
every  lawyer  present,  according  to  Mr.  Seldon’s  own  account  of 
the  matter,  whose  resentment  was  not  cooled  at  the  distance  of 
four  and  twenty  years.” 

It  is  worthy  of  remark  that  the  offences  charged  against  the 
prisoner  in  this  case,  and  relied  on  as  a justification  for  his  arrest 
and  imprisonment,  in  their  nature  and  character,  and  in  the  loose 
and  vague  manner  in  which  they  are  stated,  bear  a striking  resem- 
blance to  those  assigned  in  the  warrant  for  the  arrest  of  Mr.  Sel- 
dom And  yet,  even  at  that  day,  the  warrant  was  regarded  as 
such  a flagrant  violation  of  the  rights  of  the  subject  that  the  delay 
of  the  time-serving  judges  to  set  him  at  liberty  upon  the  Habeas 
Corpus  issued  in  his  behalf  excited  universal  indignation  at  the 
bar.  The  extract  from  Hallam’s  Constitutional  History  is  equally 
impressive  and  equally  in  point.  It  is  in  vol.  4,  p.  14  : 

u It  is  a very  common  mistake,  and  not  only  among  foreigners, 
but  many  from  whom  some  knowledge  of  our  Constitutional  laws 
might  be  expected,  to  suppose  this  statute  of  Charles  II.  enlarged 
in  a great  degree  our  liberties,  and  forms  a sort  of  epoch  in  their 
history.  But  though  a very  beneficial  enactment,  and  eminently 
remedial  in  many  cases  of  illegal  imprisonment,  it  introduced 
no  new  principle,  nor  conferred  any  right  upon  the  subject.  From 
the  earliest  records  of  the  English  law,  no  freeman  could  be  de- 
tained in  prison  except  upon  a criminal  charge  or  conviction,  or 
for  a civil  debt.  In  the  former  case  it  was  always  in  his  power  to 
demand  of  the  Court  of  King’s  Bench  a Writ  of  Habeas  Corpus  ab 
subjiciendum  directed  to  the  person  detaining  him  in  custody,  by 
which  he  was  enjoined  to  bring  up  the  body  of  the  prisoner  with 
the  warrant  of  commitment,  that  the  Court  might  judge  of  its 
sufficiency  and  remand  the  party,  admit  him  to  bail,  or  discharge 
him,  according  to  the  nature  of  the  charge.  This  Writ  issued  of 
right,  and  could  not  be  refused  by  the  Court.  It  was  not  to  be- 
stow an  immunity  from  arbitrary  imprisonment,  which  is  abun- 
dantly provided  for  in  Magna  Charta,  (if,  indeed,  it  were  not 
more  ancient,)  that  the  statute  of  Charles  II.  was  enacted,  but  to 


13 


cut  off  the  abuses  by  which  the  Government’ s lust  of  power,  and 
the  servile  subtlety  of  Crown  lawyers,  had  impaired  so  fundamen- 
tal a privilege.” 

While  the  value  set  upon  this  Writ  in  England  has  been  so  great 
that  removal  of  the  abuses  which  embarrassed  its  enjoyments  have 
been  looked  upon  as  almost  a new  grant  of  liberty  to  the  sub- 
ject, it  is  not  to  be  wondered  at  that  the  continuance  of  the  Writ 
thus  made  effective  should  have  been  the  object  of  the  most  jealous 
care.  Accordingly  no  power  in  England  short  of  that  of  Parlia- 
ment can  suspend  or  authorize  the  suspension  of  the  Writ  of  Ha- 
beas Corpus.  I quote  again  from  Blackstone  (1  Comm.,  136)  : 
“ But  the  happiness  of  our  Constitution  is  that  it  is  not  left  to  the 
Executive  power  to  determine  when  the  danger  of  the  State  is  so 
great  as  to  render  this  measure  expedient.  It  is  the  Parliament 
only,  or  legislative  power,  that,  whenever  it  sees  proper,  can  autho- 
rize the  Crown,  by  suspending  the  Habeas  Corpus  for  a short  and 
limited  time,  to  imprison  suspected  persons  without  giving  any  rea- 
son for  so  doing.”  And  if  the  President  of  the  United  States 
may  suspend  the  Writ,  then  the  Constitution  of  the  United  States 
has  conferred  upon  him  more  regal  and  absolute  power  over  the 
liberty  of  the  citizen  than  the  people  of  England  have  thought  it 
safe  to  entrust  to  the  Crown — a power  which  the  Queen  of  England 
cannot  exercise  at  this  day,  and  which  could  not  have  been  law- 
fully exercised  by  the  sovereign  even  in  the  reign  of  Charles  I. 

But  I am  not  left  to  form  my  judgment  upon  this  great  question 
from  analogies  between  the  English  Government  and  our  own,  or 
the  commentaries  of  English  jurists,  or  the  decisions  of  English 
courts,  although  upon  this  subject  they  are  entitled  to  the  highest 
respect,  and  are  justly  regarded  and  received  as  authoritative 
by  our  courts  of  justice.  To  guide  me  to  a right  conclusion,  I 
have  the  Commentaries  on  the  Constitution  of  the  United  States 
of  the  late  Mr.  Justice  Story,  not  only  one  of  the  most  eminent 
jurists  of  the  age,  but  for  a long  time  one  of  the  brightest  orna- 
ments of  the  Supreme  Court  of  the  United  States,  and  also  the 
clear  and  authoritative  decisions  of  that  Court  itself,  given  more 
than  half  a century  since,  and  conclusively  establishing  the  prin- 
ciples I have  above  stated.  Mr.  Justice  Story,  speaking  in  his  Com- 
mentaries of  the  Habeas  Corpus  clause  in  the  Constitution,  says : 


14 


“It  is  obvious  that  cases  of  a peculiar  emergency  may  arise, 
vhicli  may  justly,  nay,  even  require,  the  temporary  suspension 
of  any  right  to  the  Writ.  But  as  it  has  frequently  happened  in 
foreign  countries,  and  even  in  England,  that  the  Writ  has,  upon 
various  pretexts  and  occasions,  been  suspended,  whereby  persons 
apprehended  upon  suspicion  have  suffered  a long  imprisonment, 
sometimes  from  design,  and  sometimes  because  they  were  forgotten, 
the  right  to  suspend  it  is  expressly  confined  to  cases  of  rebellion 
or  invasion,  where  the  public  safety  may  require  it.  A very  just 
and  wholesome  restraint,  which  cuts  down  at  a blow  a fruitful 
means  of  oppression,  capable  of  being  abused  in  bad  times  to  the 
worst  of  purposes.  Hitherto  no  suspension  of  the  Writ  has  ever 
been  authorized  by  Congress  since  the  establishment  of  the  Con- 
stitution. It  w’ould  seem,  as  the  power  is  given  to  Congress  to  sus- 
pend the  Writ  of  Habeas  Corpus  in  cases  of  rebellion  or  invasion, 
that  the  right  to  judge  whether  the  exigency  had  arisen  must 
exclusively  belong  to  that  body.” — 3.  Story’s  Com.  on  the  Consti- 
tution, section  1336. 

And  Chief  Justice  Marshall,  in  delivering  the  opinion  of  the 
Supreme  Court  in  the  case  of  ex-parte  Bollman  and  Swartwout, 
uses  this  decisive  language,  in  4 Cranch,  95.  It  may  be  worthy 
of  remark  that  this  “ act  (speaking  of  the  one  under  which  I am 
proceeding,)  was  passed  by  the  first  Congress  of  the  United  States, 
sitting  under  a Constitution  which  had  declared  ‘ that  the  privilege 
of  the  Writ  of  Habeas  Corpus  should  not  be  suspended,  unless 
when,  in  case  of  rebellion  and  invasion,  the  public  safety  might 
require  it.’  Acting  under  the  immediate  influence  of  this  injunc- 
tion, they  must  have  felt,  with  peculiar  force,  the  obligation  of 
providing  efficient  means  by  which  this  great  Constitutional  privi- 
lege should  receive  life  and  activity ; for  if  the  means  be  not  in 
existence,  the  privilege  itself  would  be  lost  although  no  law  for  its 
suspension  should  be  enacted.  Under  the  impression  of  this  ob- 
ligation, they  gave  to  all  the  Courts  the  power  of  awarding  Writs 
of  Habeas  Corpus.” 

And  again,  in  page  101  : 

“If  at  any  time  the  public  safety  should  require  the  suspension 
of  the  powers  vested  by  this  act  in  the  Courts  of  the  United  States, 
it  is  for  the  Legislature  to  say  so.  That  question  depends  on  po- 


15 


litical  considerations,  on  which  the  Legislature  is  to  decide.  Until 
the  Legislative  will  be  expressed,  this  Court  can  only  see  its  duty, 
and  must  obey  the  law.” 

I can  add  nothing  to  these  clear  and  emphatic  words  of  my 
great  predecessor. 

But  the  documents  before  me  show  that  the  military  authority 
in  this  case  has  gone  far  beyond  the  mere  suspension  of  the  privi- 
lege of  the  Writ  of  Habeas  Corpus.  It  has,  by  force  of  arms, 
thrust  aside  the  judicial  authorities  and  officers  to  whom  the  Con- 
stitution has  confided  the  power  and  duty  of  interpreting  and  ad- 
ministering the  laws,  and  substituted  a military  government  in  its 
place,  to  he  administered  and  executed  by  military  officers,  for  at 
the  time  these  proceedings  were  had  against  John  Merryman,  the 
District  Judge  of  Maryland,  the  Commissioner  appointed  under 
the  act  of  Congress,  the  District  Attorney,  and  the  Marshal,  all 
resided  in  the  city  of  Baltimore,  a few  miles  only  from  the  home 
of  the  prisoner.  Up  to  that  time  there  had  never  been  the  slightest 
resistance  or  obstruction  to  the  process  of  any  Court  or  judicial 
officer  of  the  United  States  in  Maryland,  except  by  the  military 
authority. 

And  if  a military  officer,  or  any  other  person,  had  reason  to 
believe  that  the  prisoner  had  committed  any  offence  against  the 
laws  of  the  United  States,  it  was  his  duty  to  give  information  of 
the  fact,  and  the  evidence  to  support  it,  to  the  District  Attorney  ; 
and  it  would  then  have  become  the  duty  of  that  officer  to  bring 
the  matter  before  the  District  Judge  or  Commissioner,  and  if  there 
was  sufficient  legal  evidence  to  justify  his  arrest,  the  Judge  or 
Commissioner  would  have  issued  his  warrant  to  the  Marshal  to 
arrest  him  ; and  upon  the  hearing  of  the  party  would  have  held 
himjo  bail,  or  committed  him  for  trial,  according  to  the  character 
of  the  offence  as  it  appeared  in  the  testimony,  or  would  have  dis- 
charged him  immediately,  if  there  was  not  sufficient  evidence  to 
support  the  accusation.  There  was  no  danger  of  any  obstruction 
or  resistance  to  the  action  of  the  civil  authorities,  and,  therefore, 
no  reason  whatever  for  the  interposition  of  the  military. 

And  yet,  under  these  circumstances,  a military  officer  stationed 
in  Pennsylvania,  without  giving  any  information  to  the  District 
Attorney,  and  without  any  application  to  the  judicial  authori- 


16  ' 


ties,  assumes  to  himself  the  judicial  power  in  the  District  of 
Maryland ; undertakes  to  decide  what  constitutes  the  crime  of 
treason  or  rebellion  ; what  evidence  (if  indeed,  he  required 
any)  is  sufficient  to  support  the  accusation  and  justify  the  com- 
mitment ; and  commits  the  party,  without  having  a hearing,  even 
before  himself,  to  close  custody  in  a strongly  garrisoned  fort,  to  be 
there  held,  it  would  seem,  during  the  pleasure  of  those  who  com- 
mitted him. 

The  Constitution  provides,  as  I have  before  said,  that  “ no  person 
shall  be  depi’ived  of  life,  liberty  or  property,  without  due  process 
of  law.'”  It  declares  that  “ the  right  of  the  people  to  be  secure  in 
their  persons,  houses,  papers  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated,  and  no  warrant  shall 
issue,  but  upon  probable  cause,  supported  by  oath  or  affirmation, 
and  particularly  describing  the  place  to  be  searched,  and  the  per- 
sons or  things  to  be  seized.”  It  provides  that  the  party  accused 
shall  be  entitled  to  a speedy  trial  in  a Court  of  justice. 

And  these  great  and  fundamental  laws,  which  Congress,  itself, 
could  not  suspend,  have  been  disregarded  and  suspended,  like  the 
Writ  of  Habeas  Corpus,  by  a military  order,  supported  by  force  of 
arms.  Such  is  the  case  now  before  me,  and  I can  only  say  that  if 
the  authority  which  the  Constitution  has  confided  to  the  judiciary 
department  and  judicial  officers  may  thus,  upon  any  pretext  or 
under  any  circumstances,  be  usurped  by  the  military  power  at  its 
discretion,  the  people  of  the  United  States  are  no  longer  living 
under  a government  of  laws,  but  every  citizen  holds  life,  liberty 
and  property  at  the  will  and  pleasure  of  the  army  officer  in  whose 
military  district  he  may  happen  to  be  found. 

In  such  a case  my  duty  was  too  plain  to  be  mistaken.  I have 
exercised  all  the  power  which  the  Constitution  and  laws  confer  on 
me,  but  that  power  had  been  resisted  by  a force  too  strong  for  me 
to  overcome.  It  is  possible  that  the  officer  who  has  incurred  this 
grave  responsibility  may  have  misunderstood  his  instructions,  and 
exceeded  the  authority  intended  to  be  given  him.  I shall,  there- 
fore, order  all  the  proceedings  in  this  case,  Avith  my  opinion,  to  be 
filed  and  recorded  in  the  Cii’cuit  Court  of  the  United  States  for  the 
District  of  Maryland,  and  direct  the  Clerk  to  transmit  a copy, 
under  seal,  to  the  President  of  the  United  States.  It  will  then 
remain  for  that  high  officer  in  fulfilment  of  his  constitutional  obli- 
gation to  “take  care  that  the  laws  be  faithfully  executed,”  to  deter- 
mine Avhat  measures  he  will  take  to  cause  the  civil  process  of  the 
United  States  to  be  respected  and  enforced. 

R.  B.  TANEY, 

Chief  Justice  of  the  Supreme  Court , U.  S. 


